Analysis: Challenge pending to anti-spoofing law
Published: June 1,2012
Mississippi enacted a law outlawing “phone spoofing” in 2010. Other states and Congress have since enacted similar laws.
Backers of the laws say caller ID “spoofing” is a growing threat to people because of new technology making it cheap and easy to change the name and number that phone call recipients see on caller ID.
The capability of “spoofing” caller identification numbers has existed for some time and, in fact, is marketed by several entities over the Internet. It’s been used to mask prank phone calls and, more maliciously, to obscure the identity of phoned threats and harassment.
Supporters of the federal law also raised an issue that struck close to home — the use of spoofing during political campaigns could mislead voters or get voters angry at a candidate they mistakenly think is calling them, perhaps in the middle of the night.
A spoofing service provider, TelTech Systems, challenged the Mississippi law as unconstitutional in 2010. A federal judge in Mississippi sided with the company a year later, and the case is now pending in the 5th U.S. Circuit Court of Appeals in New Orleans.
In July 2009, a Florida federal court ruled a similar anti-spoofing law was unconstitutional. That ruling, which grew out of another lawsuit brought by TelTech, said that the only way for consumers to ensure they were complying with the law was to not use SpoofCards at all, meaning that the law regulated commerce outside of Florida in violation of the Commerce Clause of the U.S. Constitution.
That decision was cited by TelTech in its lawsuit and also by U.S. District Judge Tom S. Lee in Jackson.
TelTech is a New Jersey corporation that offers the SpoofCard — a service that lets callers assign a fake Caller ID when calling.
Another plaintiff, Wonderland Rentals, is a Michigan market research company that uses spoofing for a “mystery shopping” service that anonymously gauges how well its clients’ customer service representatives are working.
The companies contend only Congress or the Federal Communications Commission have the power to impose requirements on interstate phone calls. They said their customers face criminal liability under the Mississippi law, which “prohibits the use of caller ID spoofing where either the calling or called party is physically in Mississippi.”
Lee, in his ruling, said the proliferation of mobile phones, call forwarding, and other technological developments has made it “impossible for a user or provider of caller ID spoofing service to know whether the recipient of their caller ID spoofing is in Mississippi.”
“Consequently, to ensure they do not risk criminal liability for violating the Mississippi Act, they must refrain from all caller ID spoof,” Lee wrote.
Lee said the law had the practical effect of regulating commerce outside Mississippi’s borders, in violation of the Commerce Clause.
In its appeal to the New Orleans court, lawyers for Mississippi contend nothing in the federal law prevents the states from passing stricter spoofing laws. The state has asked for oral arguments, but the court has not ruled on the request.
“The federal act sets a floor for regulation for prohibited activities, it does not restrict states from enacting more expansive spoofing statutes,” wrote L. Christopher Lomax, a special assistant attorney general for Mississippi.
Lomax said the Mississippi’s law could mean spoofers must be more careful, but it doesn’t violate the commerce clause.
“The act has a legitimate public purpose in protecting Mississippi citizens against spoofing. The act is further grounded in consumer protection and the prevention of consumer fraud,” he wrote. “The act promotes truthfulness in self-identification for communications with Mississippians. That is not a burden on commerce.”
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